1822774 (Refugee)

[2024] AATA 4351

1822774 (Refugee) [2024] AATA 4351 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822774 and 2218171

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:30 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 August 2024 at 6:17pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – freedom of speech – financial circumstances – single woman/mother – health and education of child – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The first applicant is [age] years old and a national of Vietnam. She arrived in Australia on (2013) on a Student visa. She lodged an application for a Protection visa on 30 April 2018.

2. On 3 August 2018, a delegate of the Minister for Home Affairs refused to grant the first applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

3. The second applicant is [age] years old and is a national of Vietnam by descent. She was born in Australia and is the child of the first applicant. She lodged a separate application for a Protection visa on 6 April 2022.

4. On 28 November 2022 a delegate of the Minister for Home Affairs refused to grant the second applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal) combined with the application for review of the first applicant.

   CLAIMS AND EVIDENCE

   Protection visa application

5. In her protection visa application, the applicant stated she was born and lived in [City 1], Vung Tau Province, Vietnam until 2009. She stated her religion is Catholic. She states that she completed High School in 2009 in Vietnam, then attended [College] 2010 to 2013 in Vietnam. She travelled to Australia [in] October 2013 and from 2014 to 2015 she attended [University 1], in Brisbane, and completed an English course at [named education provider] in Australia in 2016. The applicant provided limited details of her employment from 2016 on a farm.

6. The first applicant’s protection visa claims were that her family background and religion is Catholic. She stated that she is often ‘opposed to local authority of laws/rulings, and had been watched/ignored by local authorities.’ She claimed that there were many occasions she ‘opposed/confronted the authorities’ herself and that her family also opposed to the communist regime as corruption of many levels, any issues raised without financial supports would not achieve anything. She said that she travelled abroad for study, looking for a better future life abroad, in order to help family back in the country. On return she claims that she will be ‘ignored, mistreated, and follow by local police, as many years stayed abroad’ and she will not have financial support.

7. The second applicant is [age] years of age and the daughter of the first applicant. In her claims, she refers to the claims of her mother being her claims including that she not have financial support and be affected by corruption and will not be protected by the authorities as a returning Citizen.

   The delegate’s decision

8. A delegate of the Minister refused the applicants Protection visa applications. The delegate was not satisfied that the applicants were refugees as defined by s5H(1) and persons in respect of who Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk they will suffer significant harm. The delegate found that the applicants were not persons in respect of whom Australia has protection obligations under s36(2)(aa) of the Act.

   The review application

9. The first applicant applied for a review of the delegate’s decision on 7 August 2018 and provided a copy of the delegate’s decision record to the Tribunal.

10. The second applicant applied for a review of the delegate’s decision on 10 December 2022 and provided a copy of the delegate’s decision record to the Tribunal.

11. The first applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. Given the age of the second applicant, she was not required to appear. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

12. On 10 May 2024, the following post-hearing documents were provided by the applicants in respect of the second applicant’s medical conditions and education requirements:

    -Medical report of [Dr A], Consultant Paediatrician, dated 2 May 2024.

    -[Hospital 1] outpatient document of [Dr B], Paediatrician, dated 26 April 2024.

    -Letter from [Ms C], Speech Pathologist, [named practice], dated 8 May 2024.

    -Letter from [named] Kindergarten, dated 29 April 2024.

    CRITERIA FOR A PROTECTION VISA

    The relevant law

13. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

14. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

15. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

16. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

17. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

18. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, reasons and findings

19. For the following reasons, the Tribunal has decided to affirm the decision under review.

    Catholic religion

20. In her protection visa application the first applicant said she fears harm on return to Vietnam as her religion is Catholic. The applicant’s religion was stated in the application as Catholic and she gave evidence at the hearing consistent with her religion as Catholic, including, that when she was married in Australia her husband converted to Catholicism so they could marry in a Catholic Church. The applicant gave evidence that on return to Vietnam she will live in her hometown of [City 1], Vung Tau, where her parents reside and where she grew up. She gave evidence that when she lived in Vietnam that she always went to the same Catholic Church and that she and her family never experienced any problems practising her Catholic religion. She did not suggest that her family had experienced any issues practising their Catholic religion or any evidence of politically motivated activities which may bring her to the adverse attention of the Vietnamese authorities in respect of the practice of her religion. The Tribunal raised with the applicant that she had never experienced any problems practising her religion in Vietnam. She responded that within the location where she is from in Vietnam there are no problems practising her religion. This is consistent with DFAT reports that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.[1] The Tribunal finds that she will continue to practise her Catholic religion on return to Vietnam in her hometown of [City 1], Vung Tau. Based on the available evidence, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the practise of the applicant’s religion on return to Vietnam now or in the foreseeable future.

    [1] DFAT Country Information Report on Vietnam, 11 January 2022 at 3.31.

    Political opinion

21. The applicant also stated in her protection visa application that she fears harm on return to Vietnam because of her political opinions. Asked about her political opinions at hearing, the applicant said that they related to her religion as Catholics and the Vietnamese Government were on in conflict. The applicant did not give any evidence and the Tribunal does not accept that the applicant has been politically active in her practise of her Catholic religion such that she would come to the adverse attention of the Vietnamese authorities for the practice of her religion or her associated political views about her religion. The Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant’s political opinions related to her Catholic religion or any other political opinions on return to Vietnam, now or in the foreseeable future.

22. The applicant also claimed at hearing that if she returns to Vietnam she be denied freedom of speech and that if she voices different opinions from the Government she will face harm. Asked what are her political opinions that she fears harm if she expresses, she responded ‘corruption and trafficking.’ She said that she is not involved in matters relating to these issues but ‘knows it is wrong.’ Based on the evidence provided, the Tribunal does not accept that the applicant will engage in political activism relating to corruption and trafficking on return to Vietnam now or in the foreseeable future. The applicant also did not give evidence to suggest and the Tribunal also does not accept that she was ever or would be on return ‘watched and followed’ by the Vietnamese authorities as suggested in her protection visa application. Therefore, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant’s political opinions on return to Vietnam now or in the foreseeable future.

    Financial circumstances

23. The first applicant claims that she fears returning to Vietnam because of the financial circumstances she will face. At hearing, she said that there are not many jobs in Vietnam, she would be unable to afford new land and she would not have enough money to raise a child. The applicant said that her salary from wages in Vietnam will not be enough for her to accumulate savings, afford a good education or access services.

24. In her visa application, the applicant stated that she completed High School in Vietnam in 2009 and that she attended College from 2010 to 2013. At hearing the applicant said that she was completing her College Degree in Vietnam in [Discipline 1]. Her family have a business in [related field] and she had initially travelled to Australia to study in her field, however, she was unable to afford to keep up her studies after completing the English course. In Australia, the applicant gave evidence she has worked for approximately four years on farms and most recently she has worked in a factory for the last four years.  The applicant said that if she returned to Vietnam, she would have her parents and [number] siblings living in [City 1], Vung Tau, where she would return to live with her family.

25. The Tribunal considers that based on the applicant’s educational background, skills and experience that she will be able to find employment on return to Vietnam and that she will have the support of her parents and four siblings in Vietnam for accommodation and to support her in caring for her daughter. The Tribunal raised with the applicant that the Country Information suggests that the Vietnamese Government also provides support to poor, single mothers, if required and that education is provided by the Government. The applicant responded that there is no Government support and her salary would be too low to accumulate savings or access a good education or services.

26. While the Tribunal accepts that the salary may not be at a high level, the Tribunal finds that the applicant will be able to find employment, have the support of her family in Vietnam and that the second applicant will be able to access education on return to Vietnam, such that she would be able to support herself and her daughter in Vietnam. The Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm for reason of her financial circumstances on return to Vietnam now or in the foreseeable future.

    Single woman/mother

27. The applicant gave evidence that she has been living separately from her husband. She said that she will return to Vietnam as a single woman/mother and she would live in [City 1], Vung Tau in Vietnam so that she can live nearby to her parents.

28. DFAT reports while single women may face societal discrimination, they do not face official discrimination, and that poor single women may receive assistance from various agencies in Vietnam.[2]  The applicant said that these are only official statistics and that there will not be government support and that the salary she can earn from working will be too low to accumulate savings or to access a good education or services.

    [2] DFAT Country Information Report on Vietnam, 11 January 2022 at 3.85 to 3.86.

29. For the reasons outlined above, the Tribunal has not accepted that there is a real chance or a real risk that the applicant will face harm for reason of her financial circumstances. The applicant did not suggest that her family would be unsupportive of her because she was a single woman/mother on return to Vietnam or that she would otherwise face harm on this basis. The applicant did not give evidence to suggest, and the Tribunal does not accept, that she will face harm directed at her for reason of her being a single woman or mother on return to Vietnam. The Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant being a single woman/mother on return to Vietnam now or in the foreseeable future.

    Health and education of child

30. The first applicant gave evidence at hearing that her daughter had development delays, speech impairment and autism. The Tribunal invited the applicant to provide any further documents within 14 days and on 10 May 2024 receive supporting reports regarding the second applicant’s health conditions and education requirements.

31. At hearing, the applicant gave evidence that she wants her daughter to be able to live and study in Australia and that it would be very difficult for her in Vietnam given her medical and educational needs.

32. The Tribunal received supporting medical reports post-hearing and accepts that the child has been diagnosed with Autism Spectrum Disorder (Level 2), Developmental Delay and speech impairment. The Tribunal accepts that the second applicant is under the treatment of a paediatrician and receives speech pathology support. The child’s kindergarten teacher states that she will also require educational support as she transitions to school.

33. Regarding mental healthcare in Vietnam, DFAT provides as follows:

    ‘Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.’ …

    Costs may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT that out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment.[3] 

    Regarding education in Vietnam, DFAT provides: ‘Vietnam has a strong cultural commitment to education reflected in high levels of school enrolment. Schools are administered by provincial governments and almost all students attend public schools. Education is free and compulsory up to age 14.’ [4]

    [3] DFAT Country Information Report Vietnam, 11 January 2022 at 2.19.

    [4] DFAT Country Information Report Vietnam, 11 January 2022 at 2.16.

34. Recent country information sources also report as to the increased awareness of autism and developmental conditions in Vietnam and there are initiatives coordinating specialist treatment services. There are also reports of specialist training being provided for educational providers.[5]

    [5] See: Entities, individuals working in autism come together in alliance (vietnamnews.vn) 7 April 2021; 'Understanding Autism' programme offers expert training for Việt Nam special educators (vietnamnews.vn) 5 April 2024; Special Em's Education Center is now Vietnam's first Certified Autism Center™ (ibcces.org) ; Special Needs Education Programme - Saigon Children’s Charity CIO

35. The Tribunal accepts that the second applicant has special health and educational needs owing to her diagnosis of developmental delay, speech impairment and autism spectrum disorder. While the Tribunal is willing to accept that there may be a higher standard of services available in Australia than in Vietnam, and that the applicant would prefer her daughter receive support in Australia, the Tribunal finds that the applicant’s daughter will not be denied access to relevant medical treatment and specialist educational services for persons with autism, developmental delay or speech impairments on return to Vietnam.

1. The Tribunal recognises that any out-of-pocket costs associated with mental healthcare and specialist education in Vietnam will impact on the applicant’s financial circumstances on return to Vietnam, however, as noted above, the Tribunal has found that the applicant’s background, skills and experience will enable her to find work on return to Vietnam and that she will also have the support of her parents and siblings in Vietnam.

2. For the above reasons, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicants for reason of the second applicant’s health conditions and education requirements, on return to Vietnam now or in the foreseeable future.

   Returnees

3. At hearing, the applicant stated that she also fears the treatment she will receive from the Vietnamese authorities on return to Vietnam because she applied for refugee status in Australia.

4. According to DFAT, ‘authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.’[6]

   [6] DFAT Country Information Report Vietnam, 11 January 2022 at 5.31.

5. The applicant initially travelled to Australia as a student and her daughter has been able to obtain a Vietnamese passport to enable her to return to Vietnam. There is also no suggestion, and the Tribunal does not accept, that the applicant has been involved in any activities which would bring her to the adverse attention of the Vietnamese authorities on return to Vietnam. For the above reasons, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant returning to Vietnam as a failed asylum seeker, now or in the foreseeable future.

   Conclusions

6. On the basis of the evidence before me, the Tribunal does not accept that there is a real chance that the applicants would be persecuted for the reason of their race, religion, nationality, political opinion, or membership of any particular social group if they were to return to Vietnam. Therefore, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for the purposes of s5J of the Act.  The Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and therefore that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

7. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of their life or the death penalty. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of who Australia has protection obligations under s36(2)(aa).

8. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Melissa Haag
   
   Member

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …